Nat'l Labor Relations Bd. v. Pain Relief Ctrs. P.A.
| Docket Number | 22-1366,22-1582 |
| Decision Date | 22 August 2023 |
| Parties | NATIONAL LABOR RELATIONS BOARD, Petitioner, v. PAIN RELIEF CENTERS P.A., Respondent. PAIN RELIEF CENTERS P.A., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | U.S. Court of Appeals — Fourth Circuit |
1
NATIONAL LABOR RELATIONS BOARD, Petitioner,
v.
PAIN RELIEF CENTERS P.A., Respondent.
PAIN RELIEF CENTERS P.A., Petitioner,
v.
NATIONAL LABOR RELATIONS BOARD, Respondent.
Nos. 22-1366, 22-1582
United States Court of Appeals, Fourth Circuit
August 22, 2023
UNPUBLISHED
Submitted: April 25, 2023
On Application for Enforcement of an Order of the National Labor Relations Board and Cross-Petition for Review. (10-CA-260563)
ON BRIEF:
Kira Dellinger Vol, Supervisory Attorney, Jennifer A. Abruzzo, General Counsel, Peter Sung Ohr, Deputy General Counsel, Ruth E. Burdick, Deputy Associate General Counsel, David Habenstreit, Assistant General Counsel, Eric Weitz, National Labor Relations Board, Washington, D.C., for Petitioner/Cross-Respondent.
Matthew Kyle Rogers, Law Offices of Matthew K. Rogers, PLLC, Hickory, North Carolina, for Respondent/Cross-Petitioner.
Before Wilkinson, Harris, and Richardson, Circuit Judges.
Application for enforcement granted and cross-petition for review denied by unpublished opinion. Judge Harris wrote the majority opinion, in which Judge Wilkinson joined. Judge Wilkinson wrote a concurring opinion. Judge Richardson wrote an opinion dissenting in part and concurring in part.
Unpublished opinions are not binding precedent in this circuit.
PAMELA HARRIS, CIRCUIT JUDGE
Five employees of a pain-management clinic were fired after they complained about their treatment by the practice manager and ultimately walked off the job. An administrative law judge found that the employer had engaged in two unfair labor practices prohibited by the National Labor Relations Act: coercively questioning the employees about their complaints, and then firing them for participating in the walkout. The National Labor Relations Board affirmed and ordered relief. The Board has now filed an application for enforcement of its order, and the employer has filed a cross-petition for review. Substantially for the reasons given by the administrative law judge and the Board, we grant the Board's application and deny the employer's petition.
I.
A.
Section 7 of the National Labor Relations Act ("Act") codifies the right of employees "to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection[.]" 29 U.S.C. § 157. To protect these rights, Section 8 of the Act proscribes "unfair labor practice[s]," which it defines in relevant part as "interfer[ing] with, restrain[ing], or coerc[ing] employees in the exercise of" their Section 7 rights. 29 U.S.C. § 158(a)(1). The Act also "empower[s]" the National Labor Relations Board ("Board" or "NLRB") "to prevent any person from engaging in any unfair labor practice" and, upon
finding a violation of the Act, "to take such affirmative action . . . as will effectuate the policies of" the Act, including ordering remedies like reinstatement and backpay. 29 U.S.C. § 160(a), (c).
B.
Pain Relief Centers, P.A. ("PRC"), respondent to the application for enforcement and cross-petitioner for review, operates two medical clinics providing pain-management and addiction-treatment services in North Carolina.[1] At the relevant time, PRC was owned and operated by Hans Hansen, who was the sole medical doctor at the clinics. Sharese Cromer, variously termed the "practice manager" or "office manager," performed a wide range of administrative and supervisory functions.
The events giving rise to this case took place at PRC's Conover, North Carolina, location. Krisandra Edwards, a nurse practitioner, was one of the medical providers at the Conover clinic. The clinic also employed medical assistants to support its medical providers, and Miranda Cox, Erin Stiltner, Yesenia Ramirez-Zavala, and Amber Whitlock worked at the clinic in that capacity.
For months in the spring of 2020, there was "growing frustration with Cromer's treatment of the staff in managing the Conover office." Administrative Law Judge ("ALJ")
Decision at 7.[2] The medical assistants found Cromer "belittling, disrespectful, and bullying," id. at 8 (cleaned up), and felt their jobs were threatened by her. The medical assistants shared their concerns with nurse practitioner Edwards, and the employees discussed their complaints as a group.
Matters came to a head in May of 2020, with two key incidents that became the basis of the instant NLRB complaint. The first - the ground for the NLRB's coercive-questioning charge - occurred on May 13, 2020, when Edwards confronted Cromer about her treatment of the medical assistants, explaining that the assistants felt uncomfortable coming to Cromer themselves. The parties agree that the confrontation became unpleasant, and while they dispute the particulars, the ALJ credited testimony that it was Cromer who became furious and yelled at Edwards to "get the fuck out of [her] office." Id. at 9-10 &n.14.
Moments later, Cromer approached the medical assistants to ask whether it was true that they found her "unapproachable," as had been reported. Cromer wanted to know "who . . . [felt] like they [couldn't] come and talk to [her]" and asked for a show of hands; none of the medical assistants responded because, they told Edwards, they were scared to say anything. Id. at 10. That afternoon, Cromer held a staff meeting, the details of which are not disputed: Cromer began by stating that "she had been disrespected, that she had been talked about, and that she was putting an end to it." Id. (internal quotation marks
omitted). After announcing two new restrictive workplace policies, she finished by insisting that any remaining issues be raised with her "then and there," as the staff "had a lot to say behind her back and she was done with the pett[iness] and drama." Id. at 11.
The second critical incident - the basis for the NRLB's unlawful-firing charge -took place the next day, May 14, 2020. That morning, Cromer and Edwards had another dispute, this time related to some documents Cromer had left on Edwards's desk. The parties agree on "the basics of the situation" - an angry confrontation in Cromer's office -and the ALJ credited testimony that, again, it was Cromer who escalated and, again, yelled at Edwards to "get out of her fucking office." Id. at 12 &n.23 (internal quotation marks omitted). After some continued back-and-forth outside Cromer's office, Cromer told Edwards she was suspended and to "go home for the day." Id. at 12.
That brings us to the walkout at the heart of this case: Edwards responded by saying that she would leave as instructed but that she was "taking the girls with [her]," and then, walking to the medical assistants' area of the office, said, "[L]et's go; let's roll out, girls." Id. at 13. The medical assistants prepared to leave. And while the parties' accounts have mostly overlapped until now, they diverge sharply at this point. According to Cromer's testimony, Edwards and the medical assistants announced that they "quit." Id. at 15. But the ALJ specifically rejected that testimony as lacking credibility, crediting instead testimony from multiple witnesses that Cromer pointed at each medical assistant and angrily declared, "[Y]ou're fired, you're fired, you're fired, you're fired." Id. at 14. The medical assistants then left, followed shortly by Edwards. That afternoon, Cromer sent
Edwards text messages wishing her "good luck in [her] future endeavors" and instructing her to return her office keys. Id. at 16.
C.
The five employees - Edwards and the four medical assistants - filed separate unfair-labor-practice charges with the NLRB. After an investigation, the NLRB's General Counsel issued a single consolidated complaint against PRC.[3]
Following a four-day hearing, ALJ David I. Goldman issued a lengthy recommended decision and order identifying two violations of Section 8 of the Act. The ALJ began with an exhaustive recounting of the underlying facts, in which he mostly - but not entirely - adopted the accounts of the employees, making detailed credibility findings that sometimes reflected poorly on PRC's witnesses. Indeed, the ALJ voiced serious concern that PRC had attempted to introduce a fraudulent document - purportedly an employment contract between PRC and Edwards - into the proceedings by way of false testimony. See ALJ Decision at 17 ("What we are left with is suspect evidence, with signatures suggestive of fabrication, and with testimony that only enhances the suspicion
that [PRC] attempted to submit a fraudulent document into evidence in a federal administrative law hearing.").
Based on that factual predicate, the ALJ determined, first, that in the May 13 incident described above, in which Cromer asked the medical assistants to identify themselves if they found her unapproachable, Cromer had unlawfully interrogated employees about activity protected under the Act - namely, their group discussions of what they felt was Cromer's abusive treatment of them at work, and Edwards's attempt to bring those complaints to Cromer's attention.[4] Second, the ALJ found that on May 14, Edwards and the four medical assistants had been unlawfully discharged for participating in a walkout that also constituted concerted and protected activity under the Act.
PRC appealed, and the NLRB issued a decision and order affirming the ALJ's evidentiary rulings, factual findings, and legal conclusions. The NLRB expressed its own concerns about PRC's litigation of the case and its effect on the integrity of the Board's processes. The Board emphasized that submission of fraudulent evidence in an NLRB proceeding is a "serious matter" that may be criminally prosecuted, though it declined to make a referral to the Department of Justice in part because the ALJ had stopped short of a definitive...
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